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Herbert J. Gannon, Jr v. Lawrence Sears

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


February 9, 2011

HERBERT J. GANNON, JR., PLAINTIFF,
v.
LAWRENCE SEARS, SUPERINTENDENT OF OGDENSBURG CORRECTIONAL FACILITY, DEFENDANT,

The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action filed by Herbert J. Gannon, Jr. ("Plaintiff") are the following: (1) a motion to dismiss for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6), filed by Lawrence Sears ("Defendant") (Dkt. No. 14); (2) Plaintiff's motion to supplement his Complaint (Dkt. No. 24); (3) United States Magistrate Judge George H. Lowe's Report-Recommendation, recommending that Defendant's motion to dismiss be granted, and Plaintiff's motion to supplement his Complaint be denied (Dkt. No. 29); and (4) Plaintiff's Objections to that Report-Recommendation (Dkt. Nos. 30). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendant's motion is granted; Plaintiff's motion is denied; and Plaintiff's Complaint (Dkt. No. 1) is dismissed.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Generally, construed with the utmost of liberality, Plaintiff's Complaint alleges that, while he was incarcerated at Ogdensburg Correctional Facility in 2008, Defendant violated his constitutional rights by treating his underlying criminal sentences as consecutive rather than concurrent, and failing to timely release him from custody. (Dkt. No. 1.) More specifically, Plaintiff alleges that, in February 2008, a decision was issued by the New York State Appellate Division in People ex rel. Gill v. Greene, 852 N.Y.S.2d 457 (N.Y. App. Div., 3d Dept. 2008), rev'd, 12 N.Y.3d 1 (N.Y. 2009), holding that, where sentencing minutes are silent on the issue, an inmate's prior undischarged sentences must be served concurrently with the sentence for the current offense. (Id.) Plaintiff further alleges that, despite the Appellate Division's decision in Gill (and despite the fact that he filed an order to show cause in July 2008 with the New York State Appellate Division and a petition for release with Saint Lawrence County Supreme Court in September 2008), Defendant denied him release from custody until January 15, 2009. (Dkt. No. 1, Part III.) Based on these factual allegations, Plaintiff claims that Defendant violated his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments. (Id.)

For a more detailed recitation of the factual allegations giving rise to Plaintiff's claims, the Court refers the reader to the Complaint in its entirety, and to Magistrate Judge Lowe's thorough Report-Recommendation, which accurately summarizes that Complaint. (See generally Dkt. Nos. 1, 29.)

B. Relevant Procedural History

On November 13, 2009, Defendant filed his motion to dismiss Plaintiff's Complaint for failure to state a claim. (Dkt. No. 14.) In support of his motion, Defendant argues that Plaintiff's Complaint must be dismissed because (1) Plaintiff has failed to allege facts plausibly suggesting a claim under the Fourth, Eighth or Fourteenth Amendments; (2) Defendant is protected from liability as a matter of law by the doctrine of qualified immunity; and (3) Plaintiff has failed to allege facts plausibly suggesting Defendant's personal involvement in any of the alleged constitutional violations. (Dkt. No. 14, Attach. 1.)

On April 5, 2010, Plaintiff submitted a memorandum of law in opposition to Defendant's motion to dismiss. (Dkt. No. 21.) In that memorandum of law, Plaintiff "request[d] permission to file late opposition in response [sic], based upon the grounds that retained counsel . . . may not have responded to [the] motion to dismiss, at least it waiting for sentencing court [sic] to hear an application with return date for April 8, 2010." (See generally Dkt. No. 21.) Plaintiff further argued that a sentence of time-served is appropriate for him under the circumstances. (Id.)

On April 15, 2010, Plaintiff filed a motion to supplement his Complaint. (Dkt. No. 24.) In support of his motion, Plaintiff argues that neither he nor his counsel received notice of the New York State Appellate Division's decision that Plaintiff's underlying petition was reversed and dismissed. (Dkt. No. 24, Affirmation.) On April 26, 2010, Plaintiff filed a supplemental affidavit in support of his motion to supplement his complaint, and attached a corrected version of his proposed Supplemental Complaint. (Dkt. No. 25.) In his proposed Supplemental Complaint, Plaintiff asserts, among other things, an additional cause of action, arising under the Sixth Amendment, apparently based on Defendant's failure to provide him with notice of an appeal from a New York State order. (Dkt. No. 25, at 8.)

On June 30, 2010, Defendant filed a response in opposition to Plaintiff's motion to supplement his Complaint. (Dkt. No. 27.) In his response, Defendant argues that, because Plaintiff's proposed Supplemental Complaint fails to allege any actionable constitutional violations against Defendant, Plaintiff's motion to supplement his Complaint should be denied as futile. (Dkt. No. 27, at 2-3.)

On November 15, 2010, Magistrate Judge Lowe issued a Report-Recommendation recommending that Plaintiff's Complaint be dismissed in its entirety because (1) the Complaint does not state a Fourteenth Amendment due process claim, (2) the Complaint does not state an Eighth Amendment cruel-and-unusual-punishment claim, and (3) the Complaint does not state a Fourth Amendment unlawful-seizure claim. (See generally Dkt. No. 29.) Familiarity with the particular grounds of Magistrate Judge Lowe's Report-Recommendation is assumed in this Decision and Order, which is intended primarily for the review of the parties.

On November 29, 2010, Plaintiff submitted his objections to the Report-Recommendation. (Dkt. No. 30.) In his objections, in addition to reiterating previously advanced arguments, Plaintiff argues as follows: (1) denying his motion to supplement his Complaint violates his due process rights; and (2) dismissal of his claims on qualified immunity grounds was improper. (Dkt. No. 30.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review Governing a Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made to a magistrate judge's report-recommendation, or where the objecting party merely reiterates the same arguments taken in its original papers submitted to the magistrate judge, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2

Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing a Motion to Dismiss

Magistrate Judge Lowe correctly recited the legal standard governing a motion to dismiss for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). As a result, that standard is incorporated by reference in this Decision and Order.

III. ANALYSIS

As an initial matter, the Court concludes that Plaintiff's first objection (i.e., that Defendant violated his constitutional rights by not releasing him after the Appellate Division issued its decision in Gill) is simply a reiteration of arguments previously asserted by Plaintiff, and rejected by Magistrate Judge Lowe. As a result, the Court reviews this objection only for clear error, and finds none. Magistrate Judge Lowe employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. The Court would only add that Magistrate Judge Lowe's Report-Recommendation regarding this issue would survive even a de novo review.*fn3

With regard to Plaintiff second objection (i.e., that denying his motion to supplement his Complaint violates his due process rights), a motion to supplement a complaint, brought pursuant to Fed. R. Civ. P. 15(d), may properly be denied based on futility. See, e.g., Farid v. Bouey, 554 F. Supp.2d 301, 308 (N.D.N.Y. 2008) (Sharpe, J.). Here, the Court agrees with Magistrate Judge Lowe that it would be futile to allow Plaintiff to supplement his Complaint because (1) Plaintiff's sentence had not "already been served" when he was released in January 2009, and (2) the proposed supplemental factual allegations do not plausibly suggest personal involvement by Defendant in the constitutional violations alleged. For example, while the proposed Supplemental Complaint appears to assert an additional claim based on Plaintiff's non-receipt of notice of an appeal from a New York State order (as a result of the documents being sent by Defendant's attorney and the court to wrong addresses), Plaintiff has not alleged any facts plausibly suggesting that Defendant was personally involved in the failure to serve him with the appeal documents. Furthermore, even assuming that Defendant was somehow aware that the documents were sent to the wrong address, Plaintiff has failed to allege facts plausibly suggesting that Defendant intentionally interfered with his mail, which caused him to suffer an actual injury. See Mitchell v. City of New York, 09-CV-3623, 2010 WL 3734098, at *7 (S.D.N.Y. Sept. 23, 2010) ("The fact that one piece of Mitchell's mail was not forwarded to his new address does not constitute tampering with the mails, nor does it violate Plaintiff's First Amendment rights.").*fn4 Simply put, the proposed Supplemental Complaint fails to allege facts plausibly suggesting that Defendant violated Plaintiff's constitutional rights.

Finally, with regard to Plaintiff's third objection (i.e., dismissal on qualified immunity grounds was improper), the Court finds that, contrary to Plaintiff's argument, Magistrate Judge Lowe did not base any part of his recommendation that Plaintiff's claims be dismissed on the grounds of qualified immunity. (Dkt. No. 29, at 5 ["Because I find that the complaint fails to state a claim on the merits, I decline to address Defendant's qualified immunity and personal involvement arguments."].)

For these reasons, Magistrate Judge Lowe's Report-Recommendation is accepted and adopted in its entirety, and Plaintiff's Complaint is dismissed.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Lowe's Report-Recommendation (Dkt. No. 29) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Defendants' motion to dismiss (Dkt. No. 14) is GRANTED; and it is further

ORDERED that Plaintiff's motion to supplement his Complaint (Dkt. No. 24) is DENIED; and it is further

ORDERED that Plaintiff's Complaint is DISMISSED. The clerk is directed to enter judgment in favor of the defendant.

Syracuse, New York


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